Thursday, May 11, 2017

At The Hill is an article about what the "nuclear option"
invoked in the Gorsuch confirmation might mean down the line, given
recent speculation that Justice Anthony Kennedy might retire as
early as June. Law professor Jonathan Turley notes that the new rules
for confirmation of Supreme Court Justices pave the way for the
appointment of much less "moderate" justices in several
ways:

The greatest problem for liberals with this
self-inflicted wound is not the change in the numerical threshold but
the political reality for confirmation. The filibuster rule gave
political cover for Republican senators in justifying their opposition
for nominees who were too far right. They could claim that they
personally wanted such a radical change but that the filibuster rule
required them to compromise. Now that cover is gone.

They
can easily appoint a reliable conservative and would have to be open
about their personal preference for a moderate in opposing a Trump
nominee. The same is true for Trump. He pledged a hard-right
conservative and there is now no serious barrier (or excuse)
preventing him from fulfilling that pledge.

The immediate
aftermath of the rightward lurch that can easily occur on the court is
that two areas "dangling on a single vote" are in the crosshairs:
legal abortion and gay rights.

Turley rightly notes,
however, that "the majority of voters might not like the territory
acquired in the wake of a conservative breakout on the court." His
analogy of the changes to the confirmation process -- initiated by the
Democrats and completed by the Republicans -- to multiple World War I
mines is far more apt than the usual analogy to a nuclear bomb: The
full ramifications cannot be known or controlled by the
mine-layer.